Judge Denies Longmont, Mile-Hi Skydiving Motions in Early Stages of Lawsuit Filed by Company

By Sam Lounsberry Staff WriterApril 3, 2019 GMT

A judge on Monday declined to grant Mile-Hi Skydiving a temporary restraining order against Longmont, but also denied the city’s request for an expedited hearing in a lawsuit over new Vance Brand Municipal Airport rules.

The case was filed by Mile-Hi Skydiving over the new fee structure for renting land at the airport and a new city video surveillance system for the designated drop zone to ensure the company’s parachutists land within the paid-for public area.

Mile-Hi is still seeking a preliminary injunction to prevent the city from enforcing its new land use policies, which require airport users pay just less than 11 cents per square foot rented at the annual rate, with lower rates for daily, weekly and monthly users. On Monday a hearing on that request was pushed back from April 29 to May 31.

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But Boulder District Judge Thomas Francis Mulvahill denied the company’s motion for a temporary restraining order against Longmont asking for essentially the same thing. Legal rules prohibit a plaintiff from including such a request in a response to a defendant’s motion to expedite, as Mile-Hi did.

“Mile-Hi is being irreparably harmed and its skydivers are potentially endangered by the city’s actions,” the denied Mile-Hi motion states.

The court stated Mile-Hi failed to establish that claim.

Mulvahill also denied Longmont’s request for an expedited hearing on the city’s motion to dismiss the lawsuit on the grounds that the court lacks jurisdiction in the matter. The company had asked the court to stay the city from enforcing its new rules until the Federal Aviation Administration decides on a complaint submitted last month by Mile-Hi alleging the airport policy updates are discriminatory.

Longmont argues only the FAA can decide the merits of that complaint.

After Mile-Hi skydivers were caught on airport cameras and by witnesses on multiple occasions failing to land within the drop zone areas for which the company paid, and the company neglected to report some off-target landings to airport staff, the city in November mandated the company rent at least 338,000 square feet to use as a landing pad.

But Mile-Hi owner Frank Casares believes it is unfair to require his business to pay more than twice what it had in years past under a fee structure that gave the skydiving operation access to 975,000 square feet of airport property for a yearly fee of about $7,500.

“For many years, Mile Hi enjoyed almost exclusive use of the public area on the south side of the airport at below-market rates,” city spokesman Rigo Leal said last month. “More recently, the city has worked to implement fair-market value rates and charges for all airport users.”

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Under the new rental model that took effect January 2018, the company would have to pay about $18,000 a year to use the 338,000 square foot area on 188 days, the number of days it conducted jumps in 2018.

From January 2018 through Nov. 1, before the city mandated it rent the 338,000-square-foot area, Mile-Hi was renting one or more of five drop zones it laid out, according to exhibits in the lawsuit. Four zones were circular areas, with three totaling 70,650 square feet each, and the fourth totaling just less than 17,000; the fifth zone was a 6,000-square-foot rectangular area.

But Mile-Hi’s website claims, “We also have 100 acres of smooth grass landing area with no obstacles.” A 100-acre area totals almost 4.4 million square feet.

Mile-Hi in 2018 paid $7,204 for the drop zone rentals, according to an affidavit signed by Longmont Airport Manager David Slayter.

Casares contends forcing Mile-Hi to rent an area that a skydiver might potentially need, rather than the space he or she actually uses, has led to an arbitrary and costly drop zone size.

“This is a political move,” Casares said of the land use fee updates that are making his overhead more costly.

Stakeholders in Vance Brand Airport activity have attributed adoption of the new airport rules now under legal scrutiny to city leaders giving more credence to concerns from the anti-airport noise group Citizens for Quiet Skies, which has unsuccessfully sued Mile-Hi.

Slayter in the affidavit raises other gripes with Mile-Hi practices on airport property, such as the business last year failing to drain a swoop pond — a small area of water skydivers can soar over during landings — ahead of winter months.

“Of greatest concern, Mile-Hi did not drain the swoop pond at the end of the season and left a substantial amount of water remaining,” Slayter stated in the affidavit. “Despite demands that Mile-Hi drain the pond, that water has become the winter home to a number of large Canada geese. ... The presence of those geese and other wildlife poses a serious safety risk.”

The affidavit also claims Mile-Hi last year violated city ordinance by setting up shipping containers to be used as classrooms and used the Quonset hut on airport property — in which the city has allowed the company to pack parachutes — for unpermitted activity, such as installing an “illegal jury-rigged generator and electrical system to power video equipment.” It also alleges Mile-Hi laid several large concrete pads on airport land without city or FAA permission to support the shipping containers, which were removed in December after repeated requests from the city to do so. Mile-Hi removed the concrete pads last month, according to the affidavit.

“In 2018, Mile-Hi’s total payments for (its five) hangars, the Quonset hut, the swoop pond, fuel flowage fee and parachute drop zone permit fee equaled approximately $29,233, or about 6 percent of total airport revenues,” Slayter stated in the affidavit. “Because of the frequency of Mile-Hi’s operations, it accounts for approximately 19 percent of total airport operations.”